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Contracts of Marque

The 100th anniversary of the signing of the Hague Convention was on 18 October. Its many provisions included limiting the use of privately armed vessels in war. The anniversary coincided with the release of the new U.S. Maritime Strategy, consideration of U.S. ratification of the United Nations Convention on the Law of the Sea (UNCLOS), and the political and media debate over private security companies. Among these seemingly disparate events is the potential application of non-traditional forces to meet maritime missions, gaps, and challenges.

The use of private professionals is nothing new. Foreigners who served in Rome's legions were sometimes rewarded with citizenship as they are in today's U.S. military. Private soldiers plied their trade in the Middle Ages, as well as the Renaissance and post-Renaissance eras. They offered specialized services that nation- or city-states were unable or unwilling to provide as part of their standing armies.

Some critics suggest that private forces are anathema to America, a criticism not borne out by history. Letters of marque were issued to American privateers in the Revolution and War of 1812 as well as by the Confederacy during the Civil War. Jean Lafitte's pirates served with General Andrew Jackson at the Battle of New Orleans. Former West Pointer William Logan Crittenden served in Narciso Lopez' unsuccessful Cuban independence movement (1850-51); William Walker's three-score force fought in Nicaragua (1856-57).

Americans later romanticized citizens who fought in foreign conflicts of independence or self-preservation with units such as the Lafayette Escadrille (World War I), the Kosciusko Squadron (Soviet-Polish War of 1921), the Abraham Lincoln Brigade during the Spanish Civil War (1936), or the Flying Tigers in China (World War II). Finally, the U.S. military now contracts with private firms that design and develop platforms and systems, provide intelligence analysis and program management support, conduct research and development, and maintain equipment. These are indicative of the already symbiotic relationship between the military and private industry.

What authorization exists for use of private forces in the maritime environment? Article I, Section 8 of the U.S. Constitution, authorizing Congress to issue letters of marque to attack foreign commerce and forces, has never been directly amended. Letters of marque were abolished by several nations in the Treaty of Paris (1856), a treaty that did not include the United States, which did sign the later Hague Convention (1907). This treaty between sovereign nation-states might not necessarily prevent the use of private naval companies against non-state actors like terrorist organizations, drug cartels, pirates, or even illegal, unregulated, and unreported fishing. Not yet ratified by the United States, UNCLOS has similar language to the Hague Convention but mentions piracy and the narco-trade. Provisions of both might allow private naval companies to operate against non-state actors, particularly if privately owned vessels are marked as U.S.-flagged ships on government service and commanded by duly commissioned officers.

It is unlikely Congress would issue letters of marque, particularly since no nation has exercised them in more than a century. Instead, the United States might employ a 21st-century iteration, perhaps "contracts of marque" issued to private naval companies. Authorization for such companies already exists in Title 10 of the U.S. Code, which states: "The President, through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or under water, and is documented, registered, or licensed under the laws of the United States."

Concern about the possible actions of a few members of any private company need not eliminate the potential positive applications of a non-traditional maritime force. To paraphrase James Madison, who understood the fallibility of man and man-made organizations: if men were angels, no oversight would be necessary. Congress is already addressing oversight and accountability with private security companies and shouldn't throw the baby out with the bathwater.

It is important to emphasize that private naval companies would not supplant conventional, symmetric naval missions against navies of other nations in potential conflicts, but given proper embedded oversight and held accountable, their benefits could be harnessed and provide an asymmetric, demand-stimulated force multiplier against the asymmetric forces of non-state actors.

Lieutenant Berube teaches in the political science and history departments at the U.S. Naval Academy. The co-author of two books, he served with Expeditionary Strike Group Five in the Persian Gulf (2004-05), has worked for two U.S. senators, as a civil servant, and with a defense firm.

Claude Berube has worked for the Office of Naval Intelligence and on Capitol Hill. In 2004, as a Navy Reserve officer, he deployed with Expeditionary Strike Group Five to the Persian Gulf. He is the coauthor of three works of non-fiction and over thirty articles and teaches at the U. S. Naval Academy.

Photograph by Jillian Crim

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